Residents of three affordable housing apartments in the Ute City building in downtown Aspen have been told by the owners of the penthouse who live above them that they cannot use the front entrance and elevator, and can only access their homes through the alley.
Natalia Shvachko and husband Michael Sedoy said they purchased the building’s two free-market condos with the understanding that the only door accessing the upper floors from Hopkins Avenue would be for their exclusive use. Their attorney, Matt Ferguson, said they may have a claim against the developer for breach of contract. Ferguson added that they are only trying to protect what they believe they rightfully purchased, but are willing to accommodate disabled people who need to use the elevator.
According to Pitkin County Assessor’s Office records, the couple purchased the two units — one is on the second level and is 1,988 square feet, while the third-floor penthouse occupies 3,542 square feet — for $6.275 million in August of 2011 from JW Ventures, LCC. They spent the next 14 months building out the condos to their specifications, and moved in about a month ago.
Aspen city officials believe that closing off the street access to the residents living in the building’s affordable housing units violates buildings codes, as well as the federal Fair Housing Act and Americans with Disabilities Act. There also is a concern that closing the front entrance and elevator lobby violates accessibility standards for the Syzygy restaurant in the basement level.
Aspen City Attorney Jim True said the case is likely headed toward litigation.
“Federal law requires it to be accessible under the Americans with Disabilities Act and the Fair Housing Act, and we are going to proceed,” True said.
According to federal law, which the city’s building codes are written to reflect, any building with four or more units that are on the second floor or higher must have an elevator that is accessible from a sidewalk, said Aspen chief building official Stephen Kanipe. Alley access doesn’t cut it, he said.
However, Ferguson points to a plat map on file and approved by the city that shows the hallway as a “limited common element” solely for the free-market owners’ use, much like their private balcony and garage. The city “screwed up” in approving the plat, he said, and some of the building’s original design features are lacking.
“There was poor design, poor planning, poor building code enforcement and now you have a problem, and we’re going to work it out,” Ferguson said.
True said he disagreed with the notion that “the city screwed up,” and that those facts would likely be sorted in court.
While the residents in the affordable housing units were used to coming and going through the alley while the condos were under construction, they thought they would get to use the front door once the work was finished. But about a week ago, a note was posted on the door in the hallway by Sedoy and Shvachko that asked their neighbors to “please respect our privacy.”
“The east staircase behind this door and the hallways are for our exclusive use,” said the note, which ended with a “happy holidays” salutation.
Jared Goulet, who like the other affordable housing tenants, rents his apartment under a one-year lease from JW Ventures and registered agent John Provine, said one of his good friends is in a wheelchair, and would have a difficult time accessing his unit.
While there is a second service elevator accessible from the alley, getting to it requires getting through multiple doors and hallways and ascending a smaller flight of stairs, all after getting around the building’s trash-collection area. The building’s service elevator is currently broken, said Goulet, who works at an art gallery in town. He added that the three residents of the affordable units are all young professionals — “great neighbors with a real sense of community.”
Goulet and other residents of the building’s affordable housing units said it seems odd that there would a street-facing door with an elevator and stairs accessing their units that would not be available to them.
“It seems dumb,” said Leticia Hanke, who lives on the second floor and works in real estate development. “It’s the front door. What do they expect?”
Kanipe said it was his department’s understanding from the building plans that all of the residents would have access to the front door via a coded keypad. He said the plat map is a different issue than the approved building plans.
If building codes are correctly enforced, then there should be no legal exposure for anyone, Kanipe said.
But Provine, one of the original developers, accused the city of moving the goal posts.
“What the city accepted in the condo plat and approved is apparently in conflict with their desires now,” he said, noting that there are lawyers involved on all sides.
Sedoy, who is originally from Russia, said the situation appears to be headed for a takings claim. If they are to be forced to open up what they purchased as their private hallway to others, then his family should be compensated, he said, citing American legal tradition and the Constitution.